Planning & Zoning Commission of Lisbon v. Desrosier

545 A.2d 597, 15 Conn. App. 550, 1988 Conn. App. LEXIS 303
CourtConnecticut Appellate Court
DecidedAugust 16, 1988
Docket5447
StatusPublished
Cited by17 cases

This text of 545 A.2d 597 (Planning & Zoning Commission of Lisbon v. Desrosier) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Planning & Zoning Commission of Lisbon v. Desrosier, 545 A.2d 597, 15 Conn. App. 550, 1988 Conn. App. LEXIS 303 (Colo. Ct. App. 1988).

Opinion

Stoughton, J.

This is an appeal by the plaintiffs from the judgment of the trial court in favor of the defendants on the second count of the plaintiffs’ complaint.1 We find error in part.

The defendants2 are the owners of premises at 16 Oak Drive and at 26 Oak Drive, both in the town of Lisbon. [552]*552The plaintiffs, the town of Lisbon planning and zoning commission and Chris A. Hempstead, the town zoning enforcement officer, claim that the court erred (1) in concluding that 26 Oak Drive was in an R-40 zone when the evidence at trial clearly indicated that it was in an R-60 zone, (2) in its computation of the lot size requirement for a two-family dwelling at 26 Oak Drive, (3) in refusing to grant injunctive relief with respect to 26 Oak Drive when the evidence indicated a clear violation of the zoning regulations by the defendants, and (4) in refusing to grant the plaintiffs’ request for attorney’s fees when the evidence indicated a wilful violation of the zoning regulations.

In separate counts of their complaint, the plaintiffs sought to enjoin the defendants from interfering with the plaintiff Hempstead in the inspection of the interior of dwellings on the two premises and from utilizing them as two-family dwellings. The trial court granted the injunctive relief sought as to the first count- dealing with 16 Oak Drive, and no appeal has been taken from that judgment. The trial court found the issues for the defendants on the second count dealing with 26 Oak Drive. The plaintiffs’ claim for reasonable attorney’s fees was also denied.

Upon the trial of this case, the court found the following facts and reached the following conclusions which are relevant to this appeal. The defendants own two properties in the town of Lisbon, known as 16 Oak Drive3 and 26 Oak Drive, with a dwelling on each. The [553]*553property at 26 Oak Drive is to the rear of 16 Oak Drive, with a right-of-way to Oak Drive. Construction at 26 Oak Drive was commenced in 1978 but, due to failure to obtain proper permits, was not completed until 1984. A certificate of use and occupancy for a single-family dwelling in an R-60 zone was issued on June 5, 1985. Although a special permit was required to build on “flag” or rear lots having less than the required street frontage, it was undisputed that the town had waived that requirement and the defendants could legally occupy the dwelling as a single-family home.4 It was [554]*554also undisputed that the defendants had leased a portion of the dwelling and were using it as a two-family residence. A cease and desist order was issued on November 14, 1985, prohibiting such use.

The court found that under the Lisbon zoning regulations two-family residences are a permitted use in all residential zones, as long as the lot area is not less than 175 percent of the minimum lot area for a one-family dwelling. The requirements for a flag lot make no distinction between one or two-family residences, since both are permitted uses. There was some confusion over the zoning of the flag or rear property, because of a recent zone change and the fact that the property was in two zones, but the plaintiff Hempstead acknowledged that the defendants had been advised that the required lot size was 120,000 square feet which is three times the minimum lot required for a dwelling located in an R-40 zone.

The court further found that while the defendants were attempting to comply with the zoning requirements, members of the commission and the town government were actively seeking to prevent them from [555]*555establishing a two-family residence in that neighborhood. It found that this opposition was not justified as to 26 Oak Drive because the defendants had filed a map showing more than adequate lot size and own a right-of-way sufficient to provide access, and because two-family residences are a permitted use in any residential zone on an oversized lot.

The court concluded that, although the defendants did not have a certificate of occupancy for a two-family house, that failure was due in large part to a very poor working relationship between the parties and to actions of town officials in attempting to prevent the defendants from obtaining necessary approvals. To the extent that a technical violation of the zoning regulations existed, it determined that it was not sufficiently grave or wilful to warrant the granting of injunctive relief.

I

The plaintiffs contend that because the certificate of occupancy issued for 26 Oak Drive notes that the location is in an R-60 zone, because the zoning enforcement officer testified that it was in an R-60 zone, and because only George Desrosier himself had testified that he believed that the property was in an R-40 zone, it was error for the trial court to conclude that the property was in an R-40 zone. The transcript discloses that the zoning enforcement officer was asked if he had an opinion as to what zone the property was in, and that he replied “R-60.” Although it is true that the certificate of occupancy showed that the location was in an R-60 zone, the building permit introduced as an exhibit showed the location as R-60 and R-40. In addition, the plaintiffs alleged in their complaint that the premises known as 26 Oak Drive “are situated partially in an R-40 zone and partially in an R-60 zone.” The trial court did not conclude that the property was in an R-40 zone, [556]*556as the plaintiffs claim, but only that, in light of the testimony that the residence itself was in an R-40 zone, it would be unreasonable and contrary to the evidence to determine the lot size requirement by using the flag lot 300 percent requirement of an R-60 zone.

“This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did. Nulman’s Appeal from Probate, 13 Conn. App. 811, 812, 537 A.2d 495 (1988).” Girgenti v. Cali-Con, Inc., 15 Conn. App. 130, 136, 544 A.2d 655 (1988). The trial court did not specifically conclude that 26 Oak Drive was in an R-40 zone. The conclusion that it would be unreasonable and contrary to the evidence to determine the lot size requirement for 26 Oak Drive by reference to the flag lot requirements for an R-60 zone was not an unreasonable one in light of the testimony and the evidence presented to the trial court.

II

The plaintiffs also claim that the defendants did not establish that 26 Oak Drive extended to an existing street by a strip of land at least twenty-five feet wide, capable of accommodating a safe and convenient driveway for access to the main part of the lot, and thus did not qualify as a lot in Lisbon as defined in the planning and zoning regulations set forth in footnote 4, supra, because it failed to meet the requirements of § 9.8.1 of those regulations.

The defendants established that they had a right-of-way to their land, but its width was not determined. The trial court made no finding as to the right-of-way, although the defendants claimed that it was fifty feet wide and the plaintiffs produced evidence that there was a gravel road approximately ten to twelve feet wide

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Bluebook (online)
545 A.2d 597, 15 Conn. App. 550, 1988 Conn. App. LEXIS 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/planning-zoning-commission-of-lisbon-v-desrosier-connappct-1988.